MEPs ask the Commission to further enhanced independence and monitoring of the Complaints Mechanism for human rights violations of the EBCG

Fourteen MEPs have submitted a question to the European Commission on 10 February 2016 questioning the status of the new Complaints Mechanism foreseen as a structure within the new European Border and Coast Guard (EBCG). The Complaints Mechanism will be responsible for accepting and examining complaints regarding possible violations of rights by EBCG officials during operations. The MEPs question whether the Mechanism will be essentially competent to fulfill its duties given it will be entirely controlled by personnel and officials of the ECBG and inquire with the commission the need for a more independent role.

“On 15.12.2015 the European Commission published a proposal for setting up a European Border and Coast Guard with broad competences in the management of migration flows at the external borders of the EU, even without the consent of the member-states, raising questions of serious risks of violation of refugees’ fundamental rights, as was previously the case with FRONTEX. To deal with such risks the draft regulation provides for a Consultative Forum on Fundamental Rights, a Fundamental Rights Officer, and a Complaints Mechanism for violation of rights by its actions (Articles 70, 71, 72)[1]. However, the proposed mechanism is subject to the control of the Fundamental Rights Officer and, through him to the Executive Director of EBCG, for whose decisions there is no guarantee of impartiality and transparency.

We ask the European Commission :

1. How shall the independence of the Complaints Mechanism of the EBCG be enhanced and monitored? Shall there be ex. a direct involvement of the EP (LIBE/DROIT Committees), that would strengthen the democratic profile and credibility of the Mechanism?

2. Will the Consultative Forum on Fundamental Rights bringing together organizations like the UNHCR or the European FRA [2] play a decisive role?”

It is indeed evident, when reading article 72 of the Proposal for Regulation for EBCG of the EC, that the Mechanism will be completely controlled by the Agency itself. Meaning that it will be the management of the Agency who is undertaking the task to examine possible wrongdoing of the Agency’s operational personnel. The admissibility of complaints also appears to be subject to various abstract constraints in way that could possibly limit the possibility of a complaint being essentially processed. Given the new agency will have a way more broad mandate than its predecessor, Frontex, including the organisation and execution of forced returns the need for a more independent mechanism becomes apparent and the relative question of MEPS is of key importance.

The controversy between the European Parliament, the European Commission and Frontex about the creation and the role of a Complaints Mechanism has a long history.

“In 2009, the Charter of Fundamental Rights became legally binding on Frontex, which is based in Warsaw. Since then, a number of civil society organisations as well as the Parliamentary Assembly of the Council of Europe have questioned whether Frontex is doing enough to comply with the Charter. One example given was its deployment of EU border guards to Greece where migrant detainees were kept in detention centers under unacceptable conditions.

In 2011, the European Parliament and the Council of the EU adopted a Regulation setting out specific additional fundamental rights obligations for Frontex. In 2012, the Ombudsman asked Frontex a number of questions about how it is fulfilling these obligations and launched a public consultation which gathered contributions from citizens, human rights NGOs and other organisations. Frontex replied that it had taken several measures, including the creation of a fundamental rights strategy, a fundamental rights officer and codes of conduct for its operations.

The Ombudsman found that, in general, Frontex was making reasonable progress in addressing fundamental rights issues. She recommended, however, that Frontex establish a complaints mechanism.

Frontex rejected this recommendation with the argument that individual incidents are the responsibility of the respective Member State. Emily O’Reilly disagreed and submitted a Special Report to the European Parliament (on Nov 2013), asking for its support in persuading Frontex to review its approach”

It took a long time for the Special Report to reach and be discussed from the pleanry fo the EP.

Finally at the beginning of December 2015 MEPs voted on a non-binding resolution that the EU’s Frontex border agency should set up a system to handle complaints about alleged breaches of the fundamental rights of migrants and asylum seekers.

The Commission has indeed introduced such mechanism in the Proposal for the ECBG that presented two weeks afterwards but is has not taken any action to create any similar structure within Frontex as it stands now. Now the fourteen MEPs indicate it has done so by completely offering control of the Mechanism to the Agency itself thus neutralizing its control role over the Agency.